STATE OF NEW JERSEY v. BRIAN E. ROBERTSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2908-03T42908-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

BRIAN E. ROBERTSON,

Defendant-Appellant.

__________________________________

 

Submitted: November 14, 2005 - Decided:

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-06-0697.

Yvonne Smith Segars, Public Defender, attorney for appellant (Neal M. Frank, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In the early morning hours of March 24, 2001, defendant Brian E. Robertson plunged a knife into the abdomen of his wife, Cara Robertson. She died soon thereafter at the hospital. A jury found defendant guilty of knowing or purposeful murder, contrary to N.J.S.A. 2C:11-3a(1)(2) (Count One); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (Count Two); and unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (Count Three). Count Four, a contempt charge, was severed for trial and defendant pled guilty before sentencing. On Count One, Judge Cantor sentenced defendant to a term of fifty years imprisonment subject to a NERA parole disqualifier. The judge merged Count Three with Count Two and imposed a concurrent five-year term of imprisonment and an eighteen-month concurrent term on Count Four. The appropriate fines, penalties and assessments were also imposed.

Defendant and his wife married in 1989. They had three daughters. In early 2001, they began having marital problems. Defendant testified that Cara had been coming home later and later each night from her job as a waitress at Gambino's Inn (Gambino's), a restaurant in New Brunswick. Defendant was very familiar with Gambino's because his family used to work there and he had been a frequent patron since he was a young boy. He knew the owners very well and got his wife her job there. Nevertheless, this job caused much friction between the couple. Defendant testified that he was jealous because he believed Cara was seeing someone else.

After a domestic dispute between the couple on March 8, 2001, a final restraining order was entered against defendant on March 16, 2001. Cara remained in the marital residence with the three children. For the most part, defendant stayed with his mother and brother.

At approximately 6:19 p.m. on March 23, 2001, defendant checked into the McIntosh Inn in East Brunswick. Defendant brought Easter baskets and cards for his children, roses for Cara, a change of clothes, and three six packs of Heineken beer. Defendant testified that he consumed ten or eleven beers in the hotel room over the course of the evening.

At approximately midnight, defendant called Gambino's. Cara had finished her shift around 11:30 p.m. and was socializing with a group of co-workers and regular customers. Dennis Burke, one of the bartenders, answered the phone and called Cara to take the call. During a brief conversation, defendant told Cara he wanted to meet her. Cara's co-worker, Patricia Dickinson, testified that Cara was upset and crying after the call.

A few minutes after defendant's call, Cara returned to socialize with her co-workers. Ten or fifteen minutes later, defendant called again. Burke answered the phone and called out to Cara to take the call. This time, Dickinson took the call. When defendant asked for Cara, Dickinson told him to leave Cara alone because he was upsetting her. Dickinson testified that defendant spoke in an angry tone. He did not sound intoxicated and did not slur his words. Defendant mentioned that he put something in Cara's car and asked whether Cara had gotten it.

Dickinson returned to the group and told Cara about her conversation with defendant. Cara was "a little bit upset. But she was okay." At Dickinson's suggestion, Cara closed the blinds on the restaurant windows.

At approximately 1:50 a.m., a half-hour to forty-five minutes after Dickinson's conversation with defendant, he arrived at Gambino's. Defendant recalls driving to New Brunswick and dropping roses off at Cara's car on the way, but he has no recollection of going to Gambino's. He does recall walking by the restaurant window and seeing his wife sitting by the bar with a couple of waitresses and Steve Polonyi, a regular customer. He testified that he had been drinking all day and night and that he had expected to meet his wife at the hotel, but she never appeared.

After seeing his wife though the window, defendant remembers entering Gambino's through a side door and going into the kitchen, where he picked up an eight-inch carving knife. Joseph Gambino, the owner of the restaurant, denied that the knife was from his kitchen. After picking up the kitchen knife, defendant recalls going around the outside of the restaurant and entering through the front door. When defendant entered Gambino's, Cara was sitting with some waitresses and Polonyi. Cara and Polonyi were sitting next to one another. Dickinson testified that Polonyi and Cara were not romantically involved. After entering Gambino's, defendant walked directly behind Cara and Polonyi and asked Polonyi in an angry tone who he was and what was he doing with his wife. Defendant then said some angry words to Cara and stabbed her with the carving knife in the abdomen. Cara's chair fell backwards and she lay on the floor bleeding.

The entire episode lasted about fifteen to twenty seconds. Cara was transported to Robert Wood Johnson University Hospital, where she died of her injuries at 3:31 a.m. An autopsy revealed two internal knife wounds that penetrated the victim's abdomen, liver, heart and lung. The wound caused massive internal bleeding. In response to a question concerning the force used to insert the knife, the medical examiner responded that "the depth of the wound occurred as the result of a deliberate effort on the part of the person using the knife." The medical examiner also opined that the cause of death was the stab wound of the right upper quadrant of the abdomen, which, in turn, caused the internal wounds, primarily to the heart and secondarily to the lung and liver.

After the stabbing, defendant turned around and "walked plainly out the door like a crime wasn't committed." He then got into his truck and sped away. Another waitress, Christine Sheridan, testified that defendant was "walking fine" and "he didn't stumble or he didn't trip or anything." Dickinson testified that defendant appeared "very, very, very angry."

After leaving Gambino's, defendant testified that he drove to a deserted area near New Brunswick High School and tried to kill himself. He was depressed about not reconciling with his wife. Defendant cut his neck, stomach, and wrists with the same knife he used to kill Cara. Defendant denied that he went to Gambino's with the intent to kill his wife.

At approximately 8 a.m., Officer Vincent Cahill of the New Brunswick Police Department was on patrol and found a vehicle matching the description of defendant's vehicle. The vehicle was parked on 12th Street near Joyce Kilmer Avenue, about two to three miles away from Gambino's. Cahill noticed a man, later identified as defendant, in the driver's seat, covered with blood with wounds on his wrist, neck and stomach. After breaking into defendant's vehicle, Cahill noticed a kitchen knife underneath defendant's leg with blood on the handle. It appeared that defendant had tried to kill himself. Shortly thereafter, defendant was transported to Robert Wood Johnson University Hospital Emergency Room, which resulted in lengthy surgery and recovery. Defendant has permanent wrist injuries and injuries requiring a permanent colostomy bag.

Joseph Taussi, an Investigator with the Middlesex County Prosecutor's Office, inspected defendant's room at the McIntosh Inn. Taussi observed three Easter baskets in the room and between ten and twenty beer bottles in the sink, about half of which were empty. Taussi also found roses and a card in Cara's truck.

John J. Verdon, M.D., a psychiatrist who met with defendant on a number of occasions and reviewed medical and police reports, testified on behalf of the defense. Verdon testified that blood loss could affect an individual's recollection, depending on how much blood was lost. When he first met with defendant, defendant's memory was "grossly impaired," and he had no independent recollection of killing his wife. Verdon testified that, in his opinion, defendant was intoxicated at the time of the killing, and distraught about the ending of his marriage and family. Verdon concluded that defendant was suffering from a mental disease or defect which would have prevented him from forming a purposeful or knowing intent.

In rebuttal, Louis Schlesinger, Ph.D., an expert in forensic psychology, testified on behalf of the State. Schlesinger opined that defendant's contact with reality was good, there was no evidence of schizophrenia, psychosis or a thinking disorder. Defendant did show a lack of empathy toward others and low self-esteem.

Schlesinger testified that it is "very common in murder cases that the offender does not recall the murder . . . more common than not." In his opinion, there was no eruption involved at the time of Cara's death. Defendant's actions were deliberate, planned and he went through many "purposeful and goal-oriented steps to get to the bar." Defendant suffered from depression, had a personality disorder, possibly alcohol dependence, but suffers from no other mental illness or defect. Defendant's actions were purposeful, with intention and knowing, and he was "aware of exactly what he was doing."

The State also offered the testimony of Dr. Robert Pandina, a Professor of Alcohol Studies at Rutgers University and an expert in the effects of alcohol. Pandina testified that defendant's blood alcohol level was not high enough to sustain the conclusion that he suffered a blackout on the night of the homicide. Pandina also testified that "most people who are intoxicated, who would be judged to be intoxicated are not prostrate of faculties to the extent that they could not act with knowledge and purpose." Pandina concluded that defendant was in a mild to moderate state of intoxication and that he was "certainly not prostrate of faculties . . . he certainly was able to act, had the capability to act with knowledge and purpose." Pandina based his opinions on the fact that defendant was able to walk into the bar, had no problem walking, made one swift move at the victim, avoided contact with anybody else, left the premises without any difficulty, and did not stumble or slur his words.

On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT ONE OF THE INDICTMENT.

POINT II: THE VERDICT ON COUNT ONE CHARGING THE DEFENDANT WITH MURDER WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE PRESENTED (Not Raised Below).

POINT III: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT IV: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL DUE TO COUNSEL'S FAILURE TO PROPERLY ADDRESS THE ISSUE OF POST-TRIAL COMMUNICATIONS FROM A STATE'S WITNESS TO THE PROSECUTOR'S OFFICE AND TO DEFENSE COUNSEL, AND FOR HIS FAILURE TO OBJECT TO PREJUDICIAL TESTIMONY FROM THE ASSISTANT MEDICAL EXAMINER (Not Raised Below).

POINT V: THE COURT'S INSTRUCTIONS TO THE JURY REGARDING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WERE DEFICIENT AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL, SINCE THE COURT DID NOT EXPLAIN HOW THE DEFENDANT'S INTOXICATION COULD NEGATE THE KNOWING AND PURPOSEFUL CONDUCT REQUIRED UNDER THE LAW (Not Raised Below).

POINT VI: THE TRIAL COURT'S REMARKS TO THE JURY IN ITS PRELIMINARY STATEMENT ERRONEOUSLY EXPLAINED THE STATE'S BURDEN OF PROOF AND CONSTITUTED ERROR (Not Raised Below).

POINT VII: THE IMPOSITION OF A PRISON TERM ABOVE THE PRESUMPTIVE TERM VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A TRIAL BY JURY AND DUE PROCESS OF LAW (Not Raised Below).

POINT VIII: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In a pro se supplemental brief, defendant raises the following issue.

THE COURT'S CHARGE AND RECHARGE ON PASSION PROVOCATION WAS PREJUDICIALLY ERRONEOUS AS IT FAILED TO INSTRUCT THE JURY THAT ADEQUATE PROVOCATION CAN RESULT FROM A PERIOD OF REPEATED ILL-TREATMENT; THEREBY, RELIEVING THE STATE OF ITS BURDEN OF PROOF RESULTING IN A DIRECTED VERDICT WHICH DENIED THE DEFENDANT DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

In Points I, II and III, defendant posits in separate arguments that there was insufficient evidence to support a verdict. These contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We comment briefly, however, on an argument included in defendant's contention that his motion for new trial should have been granted due to newly discovered evidence of a romantic relationship between his wife and Polonyi.

In his motion for a new trial, defendant cited information received from Dickinson following the trial. According to the record, Dickinson left a telephone message for the Assistant Prosecutor about a relationship between the victim and Polonyi. Dickinson had testified at trial that the victim and Polonyi were sitting next to each other at the corner of the bar, but she did not observe them embrace or touch each other that evening. In his motion for a new trial, defendant suggested that Dickinson may have told defendant that his wife and Polonyi had a romantic relationship when she spoke with him on the telephone less than an hour before he arrived at the restaurant. Judge Cantor rejected this contention for the following reasons.

I've considered what Ms. Dick[i]nson might have said or could have said. I've considered the fact that her messages to the State and to counsel come in the middle of the night in a somewhat intoxicated fashion, but even taking the best potential site (sic) for the defendant, at this point that she would have said there was more of a relationship between the victim and Steve Polonyi, and that he was very angry and maybe he wasn't angry, one, I found that you did cross-examine Ms. Dick[i]nson on the anger. . . .

With regard to whether there would have been more testimony as a relationship, I went back through my notes. Dennis Burke said there was no physical contact between Cara Robertson and Steve Polonyi. No hugging. No kissing. He was just a customer of the bar. But Steve Polonyi said that he met her, Cara, four to five months ago. That they were friends. That when Brian came into the bar[,] he glanced at Cara to get a read of how she felt. That when Cara fell on the floor she was calling for him. That he held her hand and comforted her. That she may have had her hand on my leg, and I'm not positive if my hand was on her. That she confided in me and she called me at work. Clearly, he said, clearly he set forth a lot of testimony that one could infer a relationship between Cara Robertson and himself. I don't know that Patricia Dick[i]nson could have said more than what this witness said. In addition, the defendant Brian Robertson testified that he saw Steve was touching her and it made him angry. So he corroborates what Steve Polonyi himself talked about with regard to physical contact. I think a jury had this information before them. That it would probably, one, it would just be cumulative to hear more testimony from Ms. Dick[i]nson. Two, that if she were to say there was more of a relationship, it would not have been the type of testimony that probably would have changed the jury's verdict because it was already before the jury through other witnesses.

An appellate court shall not reverse a ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Accordingly, "[t]he standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). At the same time, a trial court's determination is "not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which [the trial judge] is no more peculiarly situated to decide than the appellate court." Dolson, supra, 55 N.J. at 7.

Under Rule 3:20-1, the trial court, on defendant's motion, may grant the defendant a new trial if required in the interest of justice. In the case of newly discovered evidence, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted. State v. Ways, 180 N.J. 171, 187 (2004) (citing State v. Carter, 85 N.J. 300, 314 (1981)). All three tests must be met before the evidence can be said to justify a new trial. Ibid.

Newly discovered evidence must be reviewed with a certain degree of suspicion to ensure it is not the product of fabrication, and, if credible and material, it is of sufficient weight that it would probably alter the outcome of the verdict in a new trial. See, e.g., State v. Buonadonna, 122 N.J. 22 (1991) (finding "sketchy" evidence insufficient to warrant a new trial). "A jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons." Ways, supra, 180 N.J. at 187.

Here, in focusing on the first prong of the Carter test, the materiality of the new evidence is questionable. The message Dickinson left for the Assistant Prosecutor was inadvertently erased. Thus, the new information she may or may not have provided is unknown. After the prosecution properly informed defense counsel about Dickinson's phone call, defense counsel attempted to contact her, but to no avail. Dickinson proceeded to leave a message for defense counsel demanding to be left alone and stating that she had nothing to say. Although Dickinson subsequently agreed to speak with defense counsel, she never made herself available for an interview.

Moreover, because the materiality of this evidence is unknown, there is no way to determine whether it is "merely impeaching," or cumulative, i.e., evidence of a "quality [that] would not ordinarily make a difference in the jury's verdict." State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997) (citing Carter, supra, 91 N.J. at 114). As such, the first prong of the Carter test was not satisfied, and all three tests must be met to justify a new trial. Ways, supra, 180 N.J. at 187.

Defendant argues that, while it may be difficult to establish exactly what the testimony of Dickinson would be, the trial court prevented defense counsel from exploring the issue and defendant should not be prejudiced by the trial court's failure to provide counsel an opportunity to "produce the witness and explore the facts counsel believed to be true." However, in denying defendant's application for a new trial, Judge Cantor determined that even if Dickinson testified about Cara and Polonyi's relationship, her information would have been cumulative.

This court has recognized that the third prong of the Carter test, that newly discovered evidence be of the kind that would probably change the jury's verdict, presents a mixed question of law and fact. State v. Harris, 181 N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185 (1997)). Therefore, this court should give deference to "supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings." Ibid. Here, Judge Cantor determined that Dickinson's additional testimony would not have changed the jury's verdict because the issue of a romantic relationship between the victim and Polonyi was already before the jury through other witnesses. This was a purely factual determination and was well-supported by the evidence, particularly the testimony of Polonyi and the other employees. Indeed, our review of the record demonstrates that virtually every witness who was at the restaurant was questioned by the prosecutor, defense counsel or both about the existence of a romantic relationship between the victim and Polonyi. Moreover, Polonyi testified that they were close friends and Cara had called him at work that day.

Defendant also contends that Judge Cantor provided an inadequate instruction about the effect of intoxication on the possession of a weapon for an unlawful purpose charge. He argues that the judge failed to explain to the jury that intoxication may negate the purposeful state of mind required to convict on this charge. We disagree with this contention.

No objection was lodged to this portion of the jury charge. Therefore, we review this asserted error in accordance with the plain error rule. R. 1:7-2; R. 2:10-2. This court will reverse the conviction only if the unchallenged error was "clearly capable of producing an unjust result." R. 2:10-1, State v. Macon, 57 N.J. 325, 333 (1971).

N.J.S.A. 2C:39-4d provides:

Any person who has in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the third degree.

This section focuses "on the intent or purpose for the possession rather than the possession itself." State v. Parolin, 171 N.J. 223, 227 (2002). As such, intoxication, under N.J.S.A. 2C:2-8, is a defense to the purposeful conduct required by N.J.S.A. 2C:39-4d. State v. Cameron, 104 N.J. 42, 57 (1986).

N.J.S.A. 2C:2-8 provides that intoxication is not a defense to a criminal act unless it negates an element of the offense. In order for intoxication to negate an element of an offense, there must be a prostration of faculties such that the defendant is unable to form a purpose. Cameron, supra, 104 N.J. at 57-58.

When intoxication is an issue, the jury must be told how it relates to each charge. See State v. Klich, 321 N.J. Super. 388, 398 (App. Div. 1999). Thus, in Klich, this court reversed a conviction for possession of a weapon for unlawful purposes where the trial court charged intoxication in regard to the "purposely" or "knowingly" elements of murder, but never told the jury how intoxication related to the possession charge. Ibid.

Here, in instructing the jury about intoxication, Judge Cantor stated:

You may consider the evidence as to the defendant's consumption of alcoholic beverages in determining whether he was intoxicated to such a degree that he was incapable of acting purposely or knowingly. Therefore, once the defendant produces some evidence of his intoxication the State must prove beyond a reasonable doubt that such intoxication did not render the defendant incapable of acting purposely or knowingly.

Judge Cantor went on to define intoxication and how it relates to the murder charge. Then the judge proceeded to explain how intoxication relates to the other charges, including Count Two:

You will also note that when I defined passion/provocation manslaughter, I talked about knowing and purposely, and I will again talk to you about knowing and purposely on the other two counts of the indictment with regard to possession and unlawful possession of the weapon.

I already explained that the evidence that the defendant ingested -- that defendant ingested beer or alcohol may be considered by you in determining whether the State has proven beyond a reasonable doubt that the defendant acted purposely or knowingly with respect to the offenses that deal with purpose and knowing murder and passion/provocation manslaughter and the last two offenses charged. (emphasis added).

Unlike in Klich, the jury was told how intoxication related to each charge. Judge Cantor explained that intoxication may negate the mental states of "purposely" or "knowingly" required to establish the murder charge and the weapon charges. Her reference to "the last two offenses charged," included Count Two, possession of a weapon for an unlawful purpose. Contrary to defendant's argument, our review of the charge in its entirety reveals that the jury was instructed on the issue of intoxication as it related to the possession for an unlawful purpose.

Defendant also contends that his trial attorney provided ineffective assistance of counsel. He asserts that trial counsel ineffectively responded to the additional information provided by Dickinson after the trial and to the medical examiner's testimony that defendant acted purposely when he plunged the knife into his wife's abdomen.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). State v. Fritz, 105 N.J. 42, 58 (1987) (holding "the precepts of Strickland and its tests have been adopted by New Jersey"). Under Strickland, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 698, 104 S. Ct. at 2070, 80 L. Ed. 2d at 700. Additionally, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid.

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because "prejudice is not presumed," State v. Fritz, supra, 105 N.J. at 64, defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel is measured by a standard of "'reasonable competence.'" State v. Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, supra, 105 N.J. at 53). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Claims of ineffective assistance of counsel are particularly well-suited to post-conviction relief proceedings because in most instances the claims require development of a record beyond the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). In fact, we ordinarily decline to review an ineffective assistance of counsel claim on direct appeal unless the claim can be resolved on the trial record. See State v. DeAngelis, 281 N.J. Super. 256, 265-66 (App. Div. 1995); State v. McBride, 213 N.J. Super. 255, 272 (App. Div. 1986).

We have addressed the Dickinson information earlier in this opinion. Based on the trial record, we discern no error in the denial of defendant's motion for a new trial because any further information would have been cumulative. As noted, the possibility of a romantic relationship between the victim and Polonyi was a subject of examination by counsel of virtually every witness who was at Gambino's that evening. In particular, defense counsel was clearly trying to establish that there was some conduct observed by defendant, such as a kiss, an embrace, or even a touch, to explain defendant's conduct. We do not, however, preclude defendant from pursuing post-conviction relief on this claim if further investigation reveals substantive, rather than speculative and cumulative, evidence to support this aspect of his claim.

Defendant also asserts that trial counsel failed to object to the medical examiner's statement that he acted "by a deliberate effort." He asserts that it is not within the expertise of a medical examiner to render an opinion on state of mind and that such an opinion intrudes on the province of the jury. This claim does not require factual development beyond the trial record; therefore, it can be resolved on direct appeal. DeAngelis, supra, 281 N.J. Super. at 265-66; McBride, supra, 213 N.J. Super. at 272.

A forensic pathologist is qualified to describe the injuries found at the time of autopsy and the physiological causes of death. State v. Jamerson, 153 N.J. 318, 330 (1998). A medical examiner is not an accident reconstruction specialist. Ibid. Defendant contends that Dr. DiCarlo transgressed this rule. We disagree.

Defendant focuses on a single phrase "by a deliberate effort." Read in context, this comment followed a lengthy and comprehensive description of the internal injuries found during the autopsy. The medical examiner described the length of one wound and the body regions and body organs transversed by the knife. He revealed the existence of a second internal wound, its length, course, organ involvement, and the mechanism of the wound. Then, the prosecutor posed the following question:

Does the depth of the wound being greater than the length of the nerve suggest anything to you in your scientific opinion about the force used to insert the knife? (emphasis added).

The medical examiner responded:

This had to occur by a deliberate effort on the part of the person using the knife, yes. (emphasis added).

The medical examiner then proceeded to provide a further explanation of the wound track. In context, it is clear that the medical examiner was referring to the effort or force used, and the jury undoubtedly interpreted the response as communicating that the wounds were caused by a powerful thrust rather than a commentary on defendant's state of mind. We, therefore, find no merit to this contention.

In his pro se supplemental brief, defendant argues that the passion/provocation instruction was erroneous because the jury was not informed that a period of ill-treatment may supply adequate provocation. This contention is without merit because there was no factual basis to support such an instruction. See State v. Choice, 98 N.J. 295, 299 (1985) (holding that in determining whether to charge an offense not requested by counsel, a court must find the evidence clearly indicates the appropriateness of such a charge).

Finally, defendant argues that the imposition of a fifty-year term subject to an eighty-five percent parole ineligibility term is manifestly excessive and unconstitutional. We disagree.

There is no presumptive term for murder. N.J.S.A. 2C:11-3b(1) provides special sentencing terms for murder between thirty years and life with a thirty-year parole ineligibility term. Therefore, a sentence beyond thirty years is not effected by the ruling in Blakely v. Washington, 542 U.S. 296, 302-03, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413-14 (2004). State v. Abdullah, 184 N.J. 497, 508 (2005).

In the course of fashioning the sentence, Judge Cantor identified two aggravating factors: the nature and circumstances of the offense and the need to deter criminal behavior. N.J.S.A. 2C:44-1a(1), (9). She considered the public nature of the place of the assault in the presence of friends and co-workers of the victim. The record amply supports the finding that the assault was "especially heinous."

Defendant walked into a restaurant where several of his wife's friends and co-workers were present, pulled out an eight-inch carving knife, and deliberately stabbed his wife in the abdomen. He then proceeded to turn around and walk out, as his wife fell to the floor and bled to death. The victim's friends, had they stepped in, could have been injured, not to mention the emotional distress they suffered from witnessing such a heinous act. Such circumstances aggravate the offense and warrant more severe punishment.

Additionally, Judge Cantor found aggravating factor nine relevant because, at the time defendant entered Gambino's and killed his wife, he was under a restraining order prohibiting him from having any contact with his wife. Thus, she "considered strongly the need to deter this defendant and others from violating the law." She continued, "all people ordered by the Court to stay away from other people should know that their disobedience of a court order will increase the severity of their sentences." The fact that defendant was violating a restraining order when he killed his wife clearly aggravates the offense and warrants a more severe punishment.

Judge Cantor also found two mitigating factors to be relevant. First, she found that defendant's lack of prior delinquency or criminal activity and the fact that defendant had led a law-abiding life for a substantial period of time prior to the commission of this offense constituted a mitigating factor under N.J.S.A. 2C:44-1(b)(7). Additionally, she found that defendant acted under a strong provocation, under N.J.S.A. 2C:44-1(b)(3). She based this finding on the fact that defendant "believed he loved his wife and children and could not bear the rejection of his dream of reunification that evening coupled with his anger over another man being involved in his life." Nevertheless, Judge Cantor determined that the aggravating factors clearly outweighed the mitigating factors.

When reviewing a trial court's sentencing decision, "an appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

In determining whether a defendant was properly sentenced, an appellate court must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence"; (2) "require that the factfinder apply correct legal principles in exercising its discretion"; and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). Within these limitations, an appellate court must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable. Id. at 364-65.

We are satisfied that the judge's sentencing discretion was informed by evidentially supported factual findings and correctly identified and applied legal principles. We discern no basis to modify the sentence.

 
Affirmed.

N.J.S.A. 2C:43-7.2.

(continued)

(continued)

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A-2908-03T4

December 8, 2005